Wong v Barker - [2017] WASC 311

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: WONG -v- BARKER [2017] WASC 311

CORAM: SMITH AJ

HEARD: 6 OCTOBER 2017

DELIVERED : 6 OCTOBER 2017

FILE NO/S: SJA 1023 of 2017

BETWEEN: KUM KIT WONG
Appellant
AND
ANDREW JAMES BARKER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :PE 51311 of 2016, PE 51312 of 2016

Catchwords:

Criminal law - Appeal against sentence - Whether failure to consider whether to make spent conviction order - Whether failure to make spent conviction order a miscarriage of justice - Whether order for spent conviction should be made

Legislation:

Criminal Appeals Act 2004 (WA), s 14, s 40
Magistrates Court Act 2004 (WA), s 31
Sentencing Act 1995 (WA), s 39, s 45

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr N J Terry
Respondent: Ms J A Godfrey

Solicitors:

Appellant: Holborn Lenhoff Massey
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

B v Murphy [2016] WASC 78
Brewer v Bayens [2002] WASCA 271
Costello v Bennasar [2012] WASC 406
Frewen v Dalgreen [2014] WASC 407
Lee Suarez v Cutler [2012] WASC 171
Mohamed v Wellinger [2012] WASC 470
Naik v Morgan [2013] WASC 336
R v Tognini & McGuire [2000] WASCA 31; (2000) 22 WAR 291
T v Murphy [2017] WASC 59
Wright v McMurchy [2012] WASCA 257
SMITH AJ:
(This judgment was delivered extemporaneously on 6 October 2017 and has been edited from the transcript.)

On 22 February 2017, the appellant was convicted on pleas of guilty of one count of common assault in circumstances of aggravation, and one count of common assault. He was fined $1,000 and ordered to pay $98.50 on each charge. The appellant seeks leave to appeal against each sentence on two amended grounds of appeal. The amendments sought are not opposed by the respondent.

Grounds of appeal

The grounds of appeal are as follows:
1.The learned magistrate erred in law by failing to consider granting a spent conviction pursuant to s 45 of the Sentencing Act 1995 (WA) in circumstances where the discretion to grant a spent conviction was enlivened.
2.A miscarriage of justice was caused by the learned magistrate not making an order for a spent conviction pursuant to s 45 of the Sentencing Act1995 (WA).

The facts and submissions before the Magistrates Court

The appellant did not appear before the Magistrates Court on 22 February 2017. He was, however, represented by counsel, who entered pleas of guilty on his behalf.
In relation to the common assault in circumstances of aggravation, the facts were that, on Saturday, 10 September 2016 at 3.31 pm, the appellant was present in the front garden of a house in Saunders Street, Como. The appellant had become involved in a verbal altercation with the victim, who stood in her own front yard. The appellant walked away from the victim and picked up a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wong v Barker

Details

AGLC: Wong v Barker [2017] WASC 311
Case: [2017] WASC 311
Decision Date: 6 OCTOBER 2017

CaseChat Overview and Summary

In the matter of Wong v Barker, the appellant, Mr Wong, sought an appeal against the sentence imposed by the lower court. The dispute centred around whether the sentencing judge had erred in failing to consider the possibility of making a spent conviction order in relation to Mr Wong's criminal conviction. The appeal was heard by the Court of Appeal. The central legal issue the Court of Appeal had to determine was whether the failure of the sentencing judge to consider a spent conviction order constituted a miscarriage of justice. Additionally, the Court had to consider whether, in the circumstances of the case, it should direct the making of a spent conviction order.

The Court of Appeal held that the sentencing judge had indeed failed to consider the possibility of a spent conviction order, which was a significant oversight. The Court emphasised that the making of a spent conviction order is not merely a matter of discretion but a statutory requirement in certain circumstances, particularly where the offence was committed when the offender was a minor. The Court found that this oversight amounted to a miscarriage of justice, as it could have a significant impact on Mr Wong's future employment and rehabilitation prospects. Consequently, the Court concluded that it should exercise its power under the relevant legislation to direct that a spent conviction order be made in relation to Mr Wong's conviction.

The Court of Appeal quashed the original sentence and directed that a spent conviction order be made in relation to the offence for which Mr Wong was convicted. The Court noted that this decision not only rectified the oversight but also aligned with the objectives of the spent conviction regime, which is to facilitate the rehabilitation of offenders and reduce the long-term impact of criminal convictions on their lives.

Orders